Overhaul the NAB law

August 29, 2019

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THE government’s plans to soften the National Accountability Bureau Ordinance for certain categories of citizens are becoming curiouser and curiouser, and it seems some basic flaws in the Musharraf-made measure are being addressed through a little bit of tinkering with it.  

It was only a few days ago that the government discovered what ordinary citizens had known for years, that NAB’s style of extorting evidence from its victims was harming governance, justice and the economy. The authority had also ignored the superior judiciary’s repeated strictures on its manner of working. Now the information adviser’s disclosures after a cabinet discussion on the subject suggested that NAB had created a national crisis. The economy had been crippled, she said, because investors and businessmen were too afraid of NAB to ply their trades and bureaucrats had stopped signing on files. Even after making allowances for the overworked adviser’s love of hyperbole, her summing up of the cabinet’s deliberations caused much anxiety to the public. 

Holders of public office cannot be denied due process and the right to a fair trial.

The next day the federal law minister offered some more easily understandable explanations. He said the government was thinking of protecting businessmen and bureaucrats from NAB’s excesses and that individuals who had never held public office were going to be put outside its reach. This means the NAB dragnet will cover only the holders of public office, that is, the politicians who have no lobby today. 

That the government should be keen to protect the business community is understandable. It is an important part of the Pakistan family and in a time of the market economy its importance has increased many times over.

There is no need to recall that the subcontinent’s political leaders, belonging to Congress and Muslim League both, became aware of the problem of corruption on the eve of partition only when they were confronted with the businessmen’s accumulation of riches during the World War II and their accession to power and influence. Both parties decided to hold the neo-rich to account but when finance minister (in the interim government of 1946-47) Liaquat Ali Khan tried to tax them, the powerful business lobby preferred partition to disgorging a part of its ill-gotten wealth. 

We should like to believe that Pakistan’s present-day business community is distinguishable from the black sheep in its fold in the past, those that grew in the state’s hothouses, made money on export vouchers, inflated the cost of civil works and over-invoiced imports of machinery. A chastened business community cannot be left at the mercy of a merciless NAB. 

Similarly, one should like to hope that today’s civil bureaucracy (the judicial and military bureaucracy are out of this discussion as the NAB law does not apply to them) has parted ways with its predecessors who had been collaborating with military dictators and corrupt politicians beyond the call of duty. They too deserve to be protected against what has been described as arm-twisting by NAB.

But if holders of public office — the politicians who still are not afraid of the accountability behemoth — are the only game left to be hunted by NAB, they too cannot be denied due process and the right to a fair trial. While the reported move to provide for bail in NAB cases is to be welcomed, there are several other problems with the law that need to be tackled.

For instance, the practice of arresting people on the basis of sketchy evidence, and holding them for long periods in torture chambers till they confess or the co-accused become approvers, is unbecoming of a civilised state. Indeed it amounts to legitimising the Third Degree. 

Secondly, the idea of getting complaints against businessmen and bureaucrats screened by supervisory bodies is fraught with unpleasant possibilities. The extensive horizontal and vertical alliances that the resourceful corrupt maintain could torpedo all action against them.

Thirdly, all accountability measures for politicians — PRODA of 1949, EBDO of 1959, Ehtesab Act of 1997 — depended on information supplied by the government and were liable to abuse. The NAB law too suffers from dependence on the establishment’s decision as to who is to be hauled up before NAB and when.

Quite obviously, then, the NAB law needs to be overhauled so as to bring it in accord with the ­requisites of fair and non-discriminatory justice.

While on this subject, it may be necessary to point out to the powers that be that an accountability process that concentrates wholly on catching the corrupt and punishing them is less than half effective in bringing down the hydra-headed monster that corruption is. Equally, if not more important, is the need to prevent corruption. Anyone pursuing this line of thought will find sufficient guidance in the United Nations Convention Against Corruption. 

Chapter II of the convention is entirely devoted to preventive measures. Its Article 5 calls for preventive anti-corruption policies and practices and requires each state party to “develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability”.

Article 6 to 14 call for the creation of preventive anti-corruption bodies, maintenance of strong systems for the “recruitment, hiring, retention, promotion, and retirement of civil servants”, a code of conduct for public officials, public procurement and public finances, public reporting, the judiciary and prosecution services, private sector, participation of society, and measures to prevent money laundering.

The state apparatus is not unfamiliar with the requirements listed above, but its institutions have become rusty through years of mismanagement and its manuals outdated. The state has been blinking at the reality that the roots of corruption lie in its tendency to function arbitrarily and outside the Constitution, its overt and covert discrimination against sections of society on one ground or another, and its denial to a large number of people equality before the law and due protection under it. Corruption cannot be eradicated in a society whose main characteristic is inequality.

Published in Dawn, August 29th, 2019